The Failure Of Courts/Regulators To Understand The Difference Between Infrastructure Providers And Edge Providers Is Going To Be A Problem

from the the-impact-is-very,-very-different dept

To some extent we've had this discussion before, as parts of other discussions about the regulation of content online, but it's worth calling it out explicitly: regulating internet infrastructure services the same as internet edge service providers is a really bad idea. And yet, here we are. So few people seem to even care enough to make a distinction. So, let's start with the basics: "edge providers" are the companies who provide internet services that you, as a end user, interact with. Google, YouTube, Facebook, Twitter, Twitch, Reddit, Wikipedia, Amazon's e-commerce site. These are all edge providers as currently built. Infrastructure providers, however, sit a layer (or more) down from those edge providers. They're the services that make the edge services possible. This can include domain registrars and registers, CDNs, internet security companies and more. So, companies like Cloudflare, GoDaddy, Amazon's AWS, among others are examples there.

While tons of people interact with infrastructure players all the time, your average person will never even realize they're doing so -- as the interactions tend to be mediated entirely by the edge providers. For a few years now we've been seeing attempts to move the liability questions up (or, depending on your viewpoint, down) the stack from edge providers to infrastructure players. This raises a lot of significant concerns.

At the simplest level, a big part of the concern is that the only real "remedy" for an infrastructure provider is to cease providing service altogether to the edge provider. This is an incredibly blunt instrument -- as a single accusation of a legal violation could lead an entire service to come crashing down if the infrastructure provider is sufficiently spooked about the potential liability. In short: imagine what happens when a copyright holder sends a DMCA notice not to the site that had an allegedly infringing image uploaded, but rather to that site's domain registrar. If the registrar fears liability, it might revoke the domain entirely (removing service) pulling down an entire website (or, at least, the way in which most people access that website).

There may be good arguments for cases when infrastructure providers should be involved -- perhaps the edge provider cannot be found or is deliberately ignoring actual legal notices. Then you might understand moving to a different level in the stack. But it should be justified.

Instead, it seems like many are simply targeting infrastructure because either they don't understand the difference between infrastructure and edge... or just because they know that its remedy (complete removal of service) is so big that it'll have more impact. Case in point: an Italian court has ordered Cloudflare to terminate the accounts of a few sites that the court has determined to be pirate sites. Assuming that these sites truly are engaged in infringing activities, it seems fine to hold the sites themselves accountable. But that's not what's happening here. Instead, the legal liability is being placed on Cloudflare, a company that provides CDN services, but isn't the actual host of any of the content.

In a ruling handed down by the Commercial Court of Rome late last month, Cloudflare was ordered to immediately terminate the accounts of the contested pirate sites. These include filmpertutti.uno, italiaserie.tv, piratestreaming.watch, cinemalibero.red, and various others.

In addition, Cloudflare was ordered to share the personal details of the site owners and their hosting companies with RTI.

If Cloudflare fails to comply with any of the above, it must pay a fine of €1,000 for each day the infringements continue.

While Cloudflare doesn’t see itself as a hosting provider, the Court concluded that it can be seen as such, under European law. Among other things, its “Always Online” service hosts various website resources even when the site’s servers go offline.

It's that last paragraph that's most important. Basically, that's the court saying "we don't care that you're an infrastructure provider, we're going to treat you as an edge provider." That should worry everyone. Again, unlike an edge provider that might be able to more narrowly target and adjudicate activity that violates laws (or terms of service), Cloudflare's only real ability here is to cut off service entirely. That's a pretty extreme solution.

But it's not just Italian courts doing this. Gizmodo recently had an article with the provocative title, The Dirty Business of Hosting Hate Online. That article details various parts of the web in which truly vile people with pretty despicable views hang out. And, I can completely empathize with why people are both upset and troubled by such corners of the internet. I'm uncomfortable with them as well. But, is their answer to blame the lower level infrastructure providers? The Gizmodo article certainly seems to think so. The entire article reads like an attempt to shame those infrastructure providers into cutting ties.

Four years later, the Council of Conservative Citizens’ website is still online, pumping out stories about “black serial murderers.” Those pieces are now slotted between odes to nationalist politicians like Nigel Farage, advertisements for a white supremacist conference at a Tennessee state park, and a widget tracking the progress of a crowdfunding campaign to help build Donald Trump’s border wall.

All of that content is still out there, waiting to be found by the next Dylan Roof. But the people behind the site aren’t able to spread their message without some help: The group’s website is hosted by a Michigan-based company called Liquid Web and registered by web infrastructure giant GoDaddy, a publicly traded company currently valued at over $12 billion.

There's a lot more in the article, but almost all of it is targeted at infrastructure providers. Indeed, the story's title is a bit misleading, focusing on the "hosting" of content, which is much closer to an edge provider than most infrastructure providers. But do we actually want to live in a world in which registrars are in the business of determining what you're going to do with a domain before allowing you to register it? Imagine if Techdirt's registrar for our domain decided it didn't like our views on copyright? Would be okay with them just shutting us down and "taking" our domain?

There are big questions to be dealt with concerning how internet companies handle content online, from dealing with hate, harassment and abuse, to disinformation and other sketchy practices. And there are lots of important questions to be dealt with concerning what choices edge providers make concerning content moderation on their networks. But to conflate those questions with the questions related to infrastructure providers seems fraught with very bad scenarios of censorship or worse. It's completely reasonable to be concerned about ignorant racists putting up ignorant racist websites. But is the answer to block them from being able to do so entirely? Be careful what you wish for. And how far does that go? If we don't want racists to even be able to set up forums, does that mean we should also bar them from having internet access at all? Cut them off? No phone service either? Where exactly is the line drawn? And I'm sure some people will say that racists have no redeeming values and you have no problem with cutting them off entirely. But let's be upfront about that and think about the implications, because it's quite a long way to go from "this person is an ignorant racist" to "and therefore they shouldn't be able to use the internet at all."

Filed Under: copyright, edge, infrastructure, liability
Companies: cloudflare


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  • icon
    Thad (profile), 17 Jul 2019 @ 9:32am

    Headline is missing an "of". Says "The Failure Courts/Regulators"; should be "The Failure of Courts/Regulators" (or, perhaps better yet, "Courts' and Regulators' Failure").

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 9:47am

    Governments and the courts are rapidly heading towards at prior restraint based internet, where the government and industry players must pre-approve all content. They won't stop until they make the Orwellian surveillance society look pale by comparison.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Precariously Close To A Masnick Hole, 17 Jul 2019 @ 10:03am

    The failure of courts to see "edge providers" as privileged.

    With, according to you corporatists, CDA 230 providing absolute immunity from ALL other law including the Constitution and empowering to arbitrarily CONTROL all of the "platforms" that were supposedly for The Public.

    That's not way Law works, sonny.

    You have crossed the line into approving of censorship, just as I predicted.

    And that gov't-conferred immunity and power is on top of all the other advantages of mega-corporations!

    Here's the result: SNEAKY manipulation that clearly will strongly affect The Public's knowledge and therefore views so that NON-corporatists and NON-fascists are simply never seen:

    Google's Manual Interventions in Search Results

    Google CEO Sundar Pichai was summoned to testify in front of the House Judiciary Committee on December 11, 2018. This hearing spanned many topics, including Google's alleged bias against conservative content. In response to one such question about manipulation of search results, Sundar said, "We don't manually intervene on any particular search result." Sundar Pichai did not tell the truth when he made this statement.

    https://medium.com/@mikewacker/googles-manual-interventions-in-search-results-a3b0cfd3e2 6c

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jul 2019 @ 11:17pm

      Re:

      How's that AT&T cock taste, blue?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Jul 2019 @ 1:35am

      Re: The failure of courts to see "edge providers" as privileged.

      "With, according to you corporatists, CDA 230 providing absolute immunity from ALL other law"

      You still have to lie about the very basis of your argument. It's amazing, the fictional worlds you have to create for yourself just to post.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Precariously Close To A Misnack Hole, 17 Jul 2019 @ 10:05am

    The failure of courts to see "edge providers" as privileged.

    With, according to you corporatists, CDA 230 providing absolute immunity from ALL other law including the Constitution and empowering to arbitrarily CONTROL all of the "platforms" that were supposedly for The Public.

    That's not way Law works, sonny.

    You have crossed the line into approving of censorship, just as I predicted.

    And that gov't-conferred immunity and power is on top of all the other advantages of mega-corporations!

    And that gov't-conferred immunity and power is on top of all the other advantages of mega-corporations!

    Here's the result: SNEAKY manipulation that clearly will strongly affect The Public's knowledge and therefore views so that NON-corporatists and NON-fascists are simply never seen:

    Google's Manual Interventions in Search Results

    Google CEO Sundar Pichai was summoned to testify in front of the House Judiciary Committee on December 11, 2018. This hearing spanned many topics, including Google's alleged bias against conservative content. In response to one such question about manipulation of search results, Sundar said, "We don't manually intervene on any particular search result." Sundar Pichai did not tell the truth when he made this statement.

    https://medium.com/@mikewacker/googles-manual-interventions-in-search-results-a3b0cfd3e2 6c

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Precariously Close To A Misnack Hole, 17 Jul 2019 @ 10:06am

      Re: The failure of courts to see "edge providers" as p

      Now Masnick and fanboy-trolls will repeat their real position: "Good! We don't want to see your Nazi ideas!"

      Gosh, wasn't long ago that you were defending "free speech" with the cliche: "may not agree, but will defend your right to say it". -- Now you add, "JUST NOT HERE! OR ANYWHERE! Except MAYBE on your little NAZI sites, you NAZI, so The Glorious Beneficent State can keep an eye on you by way of Google and Facebook's SPYING."

      Surely was never the intent of Section 230 to make "Good Samaritans" absolute censors AND surveillance fronts for The State. -- Or was it?

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 17 Jul 2019 @ 10:11am

        Re: Re: The failure of courts to see "edge providers"

        With, according to you corporatists, CDA 230 providing absolute immunity from ALL other law including the Constitution and empowering to arbitrarily CONTROL all of the "platforms" that were supposedly for The Public.

        That's quite a large strawman you built there.

        reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 17 Jul 2019 @ 10:11am

        You absolutely have a right to speak your mind. If you want to espouse Nazi ideology, knock yourself out. And I’ll fight to protect that right, down to my last breath. But that right doesn’t entitle you to either the use of someone else’s platform or an audience for your speech.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jul 2019 @ 10:11am

        Re: Re: The failure of courts to see "edge providers&am

        What kind of medication are you on? Is it prescribed or illicit?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jul 2019 @ 10:25am

      Re: The failure of courts to see "edge providers" as privileged.

      With, according to you corporatists, CDA 230 providing absolute immunity from ALL other law including the Constitution

      Literally no one has made this argument. Not a single person has or will argue that CDA 230 overrides the Constitution.

      to arbitrarily CONTROL all of the "platforms" that were supposedly for The Public.

      No. If the government sets up its own platform, THEN, you would have a point. When a private business sets up a platform, however, your argument makes literally no sense. Unless, of course, you are arguing that the government owns everything -- which, I mean, knock yourself out, but considering how much the President you slobber over attacks "soclalism," perhaps you shouldn't be suggesting that the government control the means of production...

      reply to this | link to this | view in chronology ]

      • identicon
        TFG, 17 Jul 2019 @ 10:50am

        Re: Re: The failure of courts to see "edge providers" as privile

        No. If the government sets up its own platform, THEN, you would have a point.

        Entirely correct, and in fact the courts have already basically said that, yeah, the government can't boot people off. Reference the court case that said POTUS is in violation of the Constitution if he blocks people from his Twitter account, because it's being used as an official channel and therefore the action of him blocking people for expressing views he doesn't like counts as government action preventing expression.

        Same thing would apply to a government Facebook page - the people who set up that page would not be able to block people for expressing views they don't like.

        By extension, if the government were to set up a social media site (we'll call it whsocmed, for White House Social Media), then no one would be allowed to be banned for their views from that site.

        However, since you can still be removed from a government venue for certain behaviors that are not viewpoint expressions, such as threatening people, whsocmed might still be able to restrict access to people on the basis of abuse of other users or spam. It would be an interesting thing to see get worked out.

        It would also be true that whsocmed would still not be liable for things that the general public did on it. If someone engaged in defamation on whsocmed, then that person would be the one guilty of and liable for the defamation, and not the government-owned-and-operated social media venue.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jul 2019 @ 12:36pm

        Re: Re: The failure of courts to see "edge providers" as privile

        “considering how much the President you slobber over”

        You’re the only one who mentioned him bro...

        reply to this | link to this | view in chronology ]

  • icon
    virusdetected (profile), 17 Jul 2019 @ 10:29am

    Just one aspect of a much bigger concern...

    The underlying problem is that technology is far ahead of the knowledge and level of comprehension of too many people in decision-making positions, specifically including legislators and judges, but also including many corporate executives. Unfortunately, this isn't likely to improve in the foreseeable future and will probably get worse. Equally concerning is that ignorance is now in favor and actual facts are considered "fake news." If we had the current people in charge 560 years ago, movable type would certainly have been outlawed.

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 17 Jul 2019 @ 10:45am

    So what happens to Cloudflare when the sites don't disappear?

    Assuming Cloudflare obeys the Rome court's decision and drops the 'pirate' sites as customers, what happens when they find other CDN providers or simply go it alone without a CDN? They'll still be accessible on the internet,which is really what the court didn't want in the first place. I'm wondering if the court, in its ignorance of how internet infrastructure works, will begin fining Cloudflare anyways. Could make for an interesting case illustrating the difficulties encountered when technically illiterate judges and politicians make decisions regarding technologies they don't fully understand.

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 18 Jul 2019 @ 2:29am

      Re: So what happens to Cloudflare when the sites don't disappear

      Apart from the question of freedom of expression/censorship, I view this more like engaging banks to seize or freeze the assets of criminals or suspects. The bank is under penalty if they don't comply, but they're an infrastructure provider for the actual criminal, just like Cloudflare.

      Cloudflare isn't being threatened with penalties for copyright infringement, they're under penalty of contempt of court, or whatever the Italian equivalent is. If the site doesn't disappear, they will have the means to prove that it isn't for lack of compliance on their part.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 18 Jul 2019 @ 5:49am

    Edge Providers is a pejorative term

    Edge Providers is a pejorative term to describe the successful, profitable big content providers such as Google, etc.

    It is the Infrastructure Providers, which should actually be called Dumb Pipes providers, who created the pejorative term Edge Providers.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Jul 2019 @ 6:06am

      Re: Edge Providers is a pejorative term

      It's a damn shame when you can't tell when someone's seriously trying to redefine words to support and argument that the real words don't support, trolling or just stupid.

      reply to this | link to this | view in chronology ]

  • icon
    Bob Frankston (profile), 18 Jul 2019 @ 9:17am

    The problem is far deeper

    Technologists typically don't understand either. The powerful idea of the Internet is the complete decoupling of the relationships between endpoints and what is between.

    The telecom business is based on providing valuable services. NOw that we are creating them (such as phone calls) in our apps we need to fund that infrastructure as a shared facility and not as services.

    Telecom companies want to be seen as no different from other companies providing services so they too can extract value and network engineers also want to contribute.

    It's as if we tried to operate roads by selling tickets like we do a railroad.

    What makes this so difficult is that the idea that the value doesn't exist inside the network goes against our mental model of transporting valuable.

    There is no "edge" because any more than there there is the edge of the sidewalk and roads and paths. No wonder politicans and their consituents are confused.

    reply to this | link to this | view in chronology ]


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